Category Archives: Friday F.A.Q.

“Friday Frequently Asked Questions” is a series of articles by Tashia Rasul answering common questions about various topics in New York workers’ compensation. Tashia is a partner at Lois LLC where she defends employers in New York workers’ compensation matters. She frequently visits construction and other work sites to develop defense strategies. Tashia routinely handles complex cases involving occupational injuries, pulmonary diseases and catastrophic injuries. Tashia also works on Longshore workers’ compensation claims.

Friday F.A.Q.: Calculating Average Weekly Wage

Tashia Rasul, Esq.
Tashia Rasul, Esq.
Calculation of a claimant’s Average Weekly Wage (AWW) is dependent on the number of days and months worked, as well as the type of employee that he was at the time of the injury (e.g., a part-time or seasonal worker). NY WCL Section 14 provides a breakdown of how a claimant’s AWW is to be calculated. The generally-accepted method of calculating the AWW is to divide the total annual wages by the number of weeks worked. This is called the “straight division method”, and it is usually not a problem when the claimant worked for 52 weeks (give or take a few weeks) in the year prior to the accident. However, there are several circumstances under which a different method of calculation is warranted: Continue reading Friday F.A.Q.: Calculating Average Weekly Wage

Friday F.A.Q.: Can A Self-Employed Claimant Get A Reduced Earnings Benefit?

In New York workers’ compensation cases partially-disabled claimants are obligated to search for work before permanency is reached. If the claimant finds work but earns less than he was at the time of the accident, the employer may be liable for reduced earnings benefits, which is two-thirds of the difference between the pre-injury and post-injury wages. What happens when the claimant chooses to become self-employed and claims that his income is not “earnings” for the purposes of being eligible for workers’ compensation benefits. So, how does the Board address self-employment? Continue reading Friday F.A.Q.: Can A Self-Employed Claimant Get A Reduced Earnings Benefit?

Friday F.A.Q.: Does Protracted Healing Period (“PHP”) Apply to Every Schedule Loss of Use (SLU) Award?

No! PHP Protracted Healing Period (“PHP”) does not apply in every case. PHP applies only to Schedule Loss of Use (SLU) cases where the claimant had a total disability for a period of time exceeding the “normal healing period” for his particular injury. PHP is determined as a number of weeks, and the claimant is compensated at the temporary total disability (TTD) rate for each week, in addition to the number of weeks he is entitled to pursuant to his SLU.

In order to determine how much PHP is applicable, we first need to determine the normal healing period for the body part in question.

NY WCL Section 15(4-a) lays out the healing period for the schedulable body parts:
Arm – thirty-two weeks
Leg – forty weeks
Hand – thirty-two weeks
Foot – thirty-two weeks
Ear – twenty-five weeks
Eye – twenty weeks
Thumb – twenty-four weeks
First finger – eighteen weeks
Great toe – twelve weeks
Second finger – twelve weeks
Third finger – eight weeks
Fourth finger – eight weeks
Toe other than great toe – eight weeks

Next, we need to determine how many weeks the claimant was totally disabled for. This is usually easily determined by the number of weeks the claimant was awarded TTD benefits for. Sometimes, if no payments were made, and there is no contradictory medical evidence (an IME), the claimant will rely on his doctor’s reports finding him at a total disability in order to calculate the total disability time period.

Let’s go through an example step-by-step to see how PHP applies.

Injured body part: arm.
TTD rate: $500
Normal healing period for the arm: 32 weeks
Number of weeks at a temporary total disability: 50 weeks
SLU of arm: 25%, which equates to 78 weeks
SLU value of arm: 78 weeks x $500 = $39,000
PHP: 50 weeks (total disability period) – 32 weeks (normal healing period) = 18 weeks
PHP value: 18 weeks x $500 = $9,000

In this example, the claimant would be entitled to 18 weeks of PHP compensation ($9,000) in addition to the SLU value of his claim ($39,000). Of course, with SLU awards, the employer gets to take credit for prior payments made to the claimant.

Practice Point: In cases that involve schedulable body parts, the employer must be cognizant of the length of time that a claimant is receiving TTD benefits. This is easily overlooked when there is a direction to continue payments at the TTD rate, and there are no future hearings scheduled to address degree of disability. It is therefore advisable that employers be proactive about obtaining an IME that comments on degree of disability and litigate the issue in order to obtain a finding of a partial disability. Curbing temporary total disability is the key to keeping PHP at bay.

Friday F.A.Q.: Does Increased Wage Expectancy Apply in Every Case?

No, “Increased Wage Expectancy” does not apply to every New York case. “Increased Wage Expectancy” is a concept in New York Workers’ Compensation cases that allows for enhanced awards reflect future wage loss suffered by workers under the age of 25, who, under normal conditions would be expected to have increases in wages. It is aimed at workers who suffer from a permanent injury that would prevent them from obtaining wage increases in the future.

Per WCL §14(5), “if it be established that the injured employee was under the age of twenty-five when injured, and that under normal conditions his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages”. Generally, except in certain “atypical situations,” a finding of future wage expectancy should be limited to the same or similar employment that the claimant was in at the time of the injury. Matter of Lamiano v. Sousa & Sons, 158 AD2d 818 (1990). Continue reading Friday F.A.Q.: Does Increased Wage Expectancy Apply in Every Case?

Friday F.A.Q. “Why are so many C-8.1s being resolved in favor of the providers even when there is a legitimate reason to deny the treatment or bill?”

Tashia Rasul, Esq.
Tashia Rasul, Esq.
Many C-8.1s are resolved in favor of the providers because they are defective, meaning the C-8.1s are not properly completed or timely filed.

Part A Defenses.

The C-8.1 form is divided into two Parts: A and B. Part A requires the carrier to specify the legal reason for its objection to treatment, and to provide information on its conflicting medical evidence, that is, an IME or Peer Review Report. If treatment is being objected to, the carrier must notify the claimant, provider and Board within five days of the objection (e.g. denial of a C-4AUTH request). If the carrier is asserting that the basis for the objection is conflicting medical evidence, such evidence must be supplied with the C-8.1, or if already in the Board file, identified using the Board document identification number. Further, the carrier must provide proof of mailing of notice to the claimant, his attorney and his doctor. See NYCRR 300.23(d). Continue reading Friday F.A.Q. “Why are so many C-8.1s being resolved in favor of the providers even when there is a legitimate reason to deny the treatment or bill?”

Friday F.A.Q. “What can be done to address opioid overuse or abuse by claimants?”

Tashia Rasul, Esq.
Tashia Rasul, Esq.
While the Medical Treatment Guidelines (MTG) governing the treatment of non-acute pain allows for the use of opioids only in certain circumstances, we are still seeing an abundance of claims where the prescribing doctor fails to comply with the stringent requirements of the MTG. In October, 2016, the Board announced a new procedure that allows employers to have the issue addressed by the Board in an effective manner. Continue reading Friday F.A.Q. “What can be done to address opioid overuse or abuse by claimants?”